The Court of Appeal has seized the opportunity, in Wasif and another v Secretary of State for the Home Department, to provide guidance on the circumstances in which a case may appropriately be certified as being “totally without merit”.

Background

To commence a judicial review, an applicant must first apply for permission from the Court, which will consider, on the papers, whether the applicant has an arguable case. Previously, if permission was refused, applicants had an automatic right to an oral renewal hearing at which the refusal would be reconsidered.  A package of reforms to judicial review was introduced by the Coalition Government in 2013 (the “2013 Reforms“) ,with the stated aim of reducing the alleged rise in judicial review claims and burden on the Courts and public authorities. As part of the 2013 Reforms, judges were given the power to certify an application for permission as “totally without merit” – the effect of which is that the applicant is not entitled to an oral renewal hearing.

In Wasif, the applicants sought permission for a judicial review of the Secretary of State’s refusal to grant them leave to remain in the UK. Both applications were refused on the papers and certified as totally without merit, precluding the possibility of an oral hearing. The applicants applied to the Court of Appeal for permission to appeal, which the Court granted so that the Court of Appeal could clarify the approach to be taken when considering whether to certify an application for permission to apply for judicial review as “totally without merit”.

The meaning of “totally without merit”

The Court in Wasif confirmed that “totally without merit” means “no more and no less than ‘bound to fail‘”. A case will be bound to fail (and therefore totally without merit) where there is “no rational basis on which the claim could succeed“. However, the Court stressed that a “totally without merit” certification should not be the automatic consequence of refusing permission. The Court held that cases that are bound to fail may be distinguished from cases where the applicant has a rational argument in support of his claim but where the judge is nevertheless confident that this argument is wrong.  Although permission should be refused in these cases, they should not be certified as being “totally without merit”. Acknowledging that the distinction between these types of cases is not clear cut, the Court confirmed that the question remains “a matter for the assessment of the judge“, who should bear in mind the seriousness of the issue and the consequences of his decision.

The Court of Appeal made a number of general observations on the meaning of “totally without merit”. In particular, it held that applications should not be certified as “totally without merit” if:

(a)  a hearing could provide the applicant with an opportunity to address any perceived weaknesses in their claim;

(b)  the application, although not been pleaded properly, has an arguable basis of claim; or

(c)  the claimant might have an answer to issues raised in the summary grounds if given the opportunity.

Appealing a “totally without merit” certification

The Court confirmed that there is no right of appeal against a “totally without merit” certification. A claimant whose application for permission to apply for judicial review has been refused and so certified can only seek permission to appeal against the refusal.

Although the right to apply to the Court of Appeal for permission to appeal remains, the rules now state that such application must be determined on paper. Should permission to appeal be granted, the Court of Appeal will then hold an oral hearing on whether or not the lower Court was correct to refuse permission. Therefore, in a rather convoluted way, applicants may still (in fact) get an oral renewal hearing. However, this will only be the case where permission to appeal has been granted, ie where the applicant has shown (pursuant to CPR 52.3(6)) that either: (i) the court considers that the appeal would have a real prospect of success; or (ii) there is some other compelling reason why the appeal should be heard. Where either test is met, this would suggest that the original “totally without merit” certification of the application was inappropriate.

Comment

The Court of Appeal’s decision in Wasif provides useful clarification of the “totally without merit” concept, outlining the situations in which it may be appropriate for an application to be considered “totally without merit”. However, phrases such as “bound to fail” and “no rational basis” are inherently imprecise. As a result, the decision to certify an application as totally without merit will remain a judgment call for the judge in each case.